Many people living in South Africa are concerned with the economic, political, and crime situation in South Africa, causing them to consider emigrating with their minor children.

Do you need your Ex’s consent to relocate with minor children?

If you are a parent in South Africa and want to relocate with your minor children, you must obtain the other parent’s consent or seek permission from the court. The court will consider the child’s best interests and the impact of the relocation on the child’s relationship with the other parent and family members.

In South Africa, the Children’s Act (2005) sets out the rights and responsibilities of parents and guardians concerning the care and protection of children.

Under this Act, both parents have a joint duty to care for and maintain their children. This means that both parents must be involved in making decisions about the welfare of their children, including decisions about their residence and relocation.

If one parent wants to relocate with their minor children to another city, town, or country, they must obtain the other parent’s consent before doing so. If the other parent does not consent to the relocation, the parent who wants to relocate may apply to the court for relocation permission.

The court will consider several factors when deciding whether to grant permission for the relocation, including the child’s best interests, the impact of the relocation on the child’s relationship with the other parent, and the child’s relationship with other family members, such as siblings and grandparents.

If the court grants permission for the relocation, it may also make orders regarding the child’s contact with the non-relocating parent, including the frequency and nature of the contact, and the arrangements for the child’s travel.

It is important to note that the Children’s Act sets out the legal framework for matters relating to the care and protection of children in South Africa.

It is always best to try to reach an agreement with the other parent about the relocation of minor children rather than relying on the court to make a decision. If you cannot reach an agreement, it is recommended that you seek legal advice.

Usually, spouses or partners decide together that they want to emigrate, and there is no issue moving the children overseas with them.

However, what is the situation if you are divorced or separated from your partner that you have minor children with?

We often receive enquiries such as: “I want to emigrate with my kids, but my ex refuses to consent to the move; what can I do?”

The world is a global village, and you can get from country to country with relevant ease.

Primary Residence

If you have the primary residence of the minor children and your children have valid passports, then it does not mean that you can automatically take the children and leave the country with them.

The parent with primary residence must consult with the other parent or guardians before they can emigrate.

International Child Law – The Hague Convention

What can happen if you remove the minor children from South Africa without the other parent’s permission?

In the matter S v H 2007 (3) SA 330 (C), the minor child’s parents were unmarried. The father sought joint custody. Mom took the child to Switzerland without informing the father.

The father submitted to the court that he had the right of custody over the child as provided for in article 3 of The Hague Convention on the Civil Aspects of International Child Abduction (1980).

The court agreed with him and ruled in his favour.

South Africa is a signatory to The Hague Convention as we ratified the Convention in 1996.  The Act came into operation on 1 October 1997.

The Convention’s main objective is to enforce the rights of custody over children who have been wrongfully removed to or kept in a foreign country in breach of those rights and to secure the prompt return of the children to South Africa.

The Office of the Family Advocate deals with matters relating to The Hague Convention, and you will require at least the following:

• Prescribed questionnaire in English;
• Recent photographs of the child and the abducting parent;
• Certified copies of birth certificates;
• Proof of parental rights, such as court orders (and agreements of settlement, where applicable) regarding the custody, access & guardianship;
• Certified copy of marriage certificate, if applicable;
• Details of the child and the abducting parent’s whereabouts or possible location;
• Sworn translations to English of all relevant documentation.
• There are particular limitations on the enforcement of The Hague Convention.  

My Ex refuses to consent to removing the Minor Children from South Africa.

If your Ex refuses to allow you to remove the minor children from South Africa, you can approach the court for the necessary relief.

The main criteria that the court will consider are the best interest of the minor children, and each case is decided on its own merits.

What factors does the Court look at?

The court has stated that the question was whether the proposed move was in the best interest of the child; the court had to consider the custodian parent’s interests, the reasonableness of their decision to relocate, the practical and other considerations on which the decision is based, and the extent to which he or she had properly thought through the advantages and disadvantages to the children of the proposed move.

In the case of Jackson v Jackson 2002 (2) SA 303 (SCA), the learned Judge said the following:

“…It is no doubt true that, generally speaking, where, following a divorce, the custodian parent wishes to emigrate, a Court will not lightly refuse leave for the children to be taken out of the country if the decision of the custodian parent is shown to be bona fide and reasonable. But this is not because of so-called rights of the custodian parent; it is because, in most cases, even if the access by the non-custodian parent would be materially affected, it would not be in the best interests of the children that the custodian parent would be materially affected, it would not be in the best interests of the children that the custodian parent be thwarted in his or her endeavour to immigrate in pursuance of a decision reasonably and genuinely taken…”

Generally, the courts will allow the primary residence holder to emigrate as long as the emigration is done in good faith. If the applicant wants to emigrate to stop the other party from seeing the children, then the application will likely not succeed.

Practical Example of Urgent Relocation of Minor Child

We had a client that struggled for more than a year to find a job. Her ex refused to pay child maintenance yet refused to consent for our client to leave South Africa after she was offered a job overseas.

The matter was opposed, and we managed to persuade the court to appoint a forensic psychologist to investigate the children’s best interest.

Despite the ex’s attempts to sabotage the investigation, the psychologist finalised the report, and the court granted the order in our client’s favour with a cost order against the Ex.

Contact between the parent that remains in South Africa.

The parents of the children must find ways to maintain contact between the children and the remaining parent.

Suppose the court grants an order allowing a party to leave South Africa with the children.

In that case, the court will ensure that the remaining parent still has contact with the children – as said, and after investigating the best interest of the minor children.

A further case that dealt with the issue of relocation is the case of “B v B” (2008); the parties were divorced and had two minor children.

The mother wanted to relocate with the children to the United Kingdom, but the father opposed the relocation. The mother applied to the court for permission to relocate, and the father opposed the application.

The court considered several factors, including the children’s best interests, the impact of the relocation on the children’s relationship with the father, and the mother’s reasons for wanting to relocate.

The court also considered the parties’ respective responsibilities for the care and maintenance of the children and the arrangements that had been made for the children’s contact with the father.

In this case the court considered several factors when deciding whether to grant permission for the mother to relocate with the minor children to the United Kingdom. These factors included:

• The children’s best interests: The court recognized that the children’s best interests were the paramount consideration.
• The impact of the relocation on the children’s relationship with the father: The court considered the impact of the relocation on the children’s relationship with the father, including the frequency and nature of contact, and the arrangements for the children’s travel.
• The mother’s reasons for wanting to relocate: The court considered the mother’s reasons for wanting to relocate, including her employment prospects and the support she would receive from her family in the United Kingdom.
• The parties’ respective responsibilities for the care and maintenance of the children: The court took into account the parties’ respective responsibilities for the care and maintenance of the children, including their financial contributions and the arrangements that had been made for the children’s care.
• The arrangements for the children’s contact with the father: The court considered the arrangements that had been made for the children’s contact with the father, including the frequency and nature of contact and the arrangements for the children’s travel.

The court granted the mother’s application and allowed her to relocate with the children to the United Kingdom, subject to certain conditions.

The court made orders regarding the children’s contact with the father, including the frequency and nature of contact and the arrangements for the children’s travel.

The court noted that the children’s best interests were paramount and that the children’s relationship with both parents was important. The court also recognized that the mother had a right to relocate, provided that the relocation was not detrimental to the children’s welfare.